Three Operation Janus Updates in the Pending Cases in Federal Court

Three of the pending Operation Janus cases which had been largely dormant the last few months have now been updated on PACER. As I have written previously, these cases are “locked” on PACER, meaning you can read the titles of the documents that have been filed but can’t read the documents themselves.

In this case the Defendant finally filed his “Answer.” Then on May 9, 2018 the DOJ filed a motion asking the court to deem certain responses as “admissions” or to strike his Answer. We haven’t been able to read the pleading, but it appears the gist of their argument is that the Answer didn’t respond fully to the allegations in the Complaint.

In federal court, a civil case usually starts with the filing of a Complaint. Once they’re served, the Defendant has to file an Answer to the Complaint within a certain amount of time. The Answer can respond to the allegations in the Complaint in a number of ways. It can admit the allegation as true (meaning the parties don’t have to fight about it), can deny the allegation, or can state that the Defendant doesn’t have sufficient information to admit or deny the allegation and thus effectively “deny” it as a way of deferring admitting or denying it until more facts are known.

The DOJ only files a pleading like the one it filed here if the Answer responds to allegations but doesn’t explicitly admit, deny, or defer it. One reason defense attorneys get cagey with their responses is that their filings are governed by “Rule 11,” which says the attorney’s signature on the document certifies, among other things, that “the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.” Again, we don’t know why the government filed its pleading, because it’s locked on PACER. But that’s my best guess based on the context.

In this case the defendant filed a Motion for Summary Judgment on April 13. The DOJ filed its statement in opposition to the motion on April 26, 2018. Summary Judgment is a way for a judge to decide a case without having a trial. To grant Summary Judgment the judge has to determine that the facts are not in dispute and that, based on those undisputed facts, one side or the other wins the case. The DOJ had already moved for summary judgment and the Defendant had opposed their motion.

So, Judge Barksdale will likely issue one decision addressing both motions. If she grants either of the motions in full, then the case is over (although either side would likely appeal). If she denies both motions or only partially grants one or both (meaning some of the issues are still alive), then she’ll likely schedule a trial.

This one remains a real head-scratcher. The government finally claims as of May 14, 2018 that it has served the defendant with a copy of the Complaint. That’s a start!

What’s weird is that the government is way too late to serve the Complaint, never asked for an extension, and doesn’t appear to have a good reason for the delay.

The deadline to serve the Complaint under Rule 4 was 90 days of the filing of the Complaint. In this case, the Complaint was filed 9/19/17 but then the DOJ didn’t ask the court to issue a summons until late November. The Summons was issued 11/7/2017. When the 90th day approached, the DOJ never filed a motion asking for more time to serve the defendant (Rule 4 says you have 90 days to serve, but the court can extend that time if you ask for an extension and provide a good reason).

Why didn’t the government ask for an extension when it exceeded 90 days? Why did it wait two months to ask for a summons? Why did it take 6 more months after that initial delay to actually serve the defendant? Why didn’t the court dismiss the lawsuit as required by Rule 4 when a party doesn’t serve the Complaint or ask for an extension? I don’t even have a good guess. Nothing in this case makes any sense.

[update July 3, 2018: the government eventually filed a summons it claims to have served on Mr. Mahmood, and his deadline to respond, June 1, has now passed]

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These are the only three remaining Operation Janus cases pending. One was already granted when the Defendant never entered an appearance or filed any documents. We anticipate the DOJ will be filing more of these cases shortly, especially if they can get these cases granted without having to fight very hard.

It will be interesting to see whether Rashid Mahmood hires counsel and files a motion to dismiss the Complaint for failing to comply with Rule 4.